to hear white house telephone calls between lbj and his aides, as well as civil rights leader martin luther king and members of congress who strategize how to enact and enforce a voting rights law. we talk with lbj estimates of policy adviser, jill kelley format, and historian cap germany, who has edited transcripts of lbj's white house call. and we will see the president's speech at the u.s. capitol before he signed the bill. that is sunday at 10:00 a.m., 5:00 p.m., antenna caught clock p.m. eastern here on american history tv. in the year 1215, king john of england signed the magna carta which placed limits on the monarchs power. the founding fathers turn to the magna carta when drafting the u.s. constitution. up next on american history tv, a panel of scholars examined the influence of the magna carta on the constitution. panelists discuss the historical context of the magna carta, as well as common misconceptions

about both it and the constitution. the national archives hosted this event to mark the 800th anniversary of the magna carta. it is about 90 minutes. >> i'm the executive director of the constitutional project, we are an organization devoted to promote greater access to an understanding of u.s. constitutional history. it is a pleasure to join the national archives this evening to celebrate the 800th anniversary of the ceiling of the magna carta. magna carta has left a profound legacy for law and culture around the world. to commemorate magna carta and its powerful ideas, like trial by jury and due process of law embodied in its text, we've assembled an impressive group of scholars to discuss magna carta's influence on american constitutionalism. tonight will be joined by jennifer paxton, a medieval specialist from catholic universities in america the

author of in the shadow of the great charter, who gave a wonderful lecture this afternoon. and bruce o'briant, and magna carta expert from the university of mary washington. tonight's program will be live tweeted on the consular's twitter page, live streamed on the national archives youtube page, and i'm told that c-span is also here with us this evening. i hope folks joining us at home and around the world will tune in online and on social media. with that, i now have the great privilege of welcoming to the stage our expert panelist as well as our distinguished monolayer -- moderator. please join me in welcoming and then -- welcoming them in. [applause] julie: with that, i hand the reins over to our moderator

judge lambert. judge lambert: thank you, julie. as a pleasure to be here. 800 years ago, a group of barons forced king john to sign the magna carta, the idea that the king's capacity to kill and imprison should not be exercised at its whim, but that he should have explicit constraints. and that neither force nor detention should be used against a free man except in accordance with the lawful judgment of his equals or by the law of the land. that's the words from the 1215 version of the magna carta. you will hear a lot tonight about the impact magna carta has had in this country in both state constitutions and in the united states constitution. since england never adopted a constitution, in some ways, the influence of magna carta is even greater in this country.

certainly the notions of due process of law, the right to jury trials have developed directly from magna carta, as well as separation of powers, principles, and tradition -- judicial decision-making on what law is. some of this is really fascinating, historically. for example when the barons demanded a jury of their peers with magna carta, they certainly were not envisioning a jury of commenters, their peers were clearly other barons. so some of their notions would be a surprise to them if they were here 800 years later to know how we interpret a jury of your peers. to include mere commoners. but i'm a card has become a rallying cry for centuries now regarding with the law of the land requires. as we debate today current topics like whether the president can legally authorized drone strikes to kill american

citizens, we hear citations for magna carta, even today in legal debates about the power of our president. as many of you know, there was a great ceremony today to celebrate his 800th anniversary, queen elizabeth was there, along with the archivist david verio who was there instead of here, i'm sorry to say. but not sorry for him, i'm sure he had a great time. many of my colleagues, the president of the american bar association and other colleagues were there as well. i tell you one story, because when i was a student in law school, and last summer before i graduated from law school, i spent in europe traveling through europe and i decided i was in england that i would go to see where the magna carta had been signed, the original version in 1215. the american bar association actually put up the memorial

that is they are, it was only put up in 1957. the actual memorial with a plaque was erected in 1957. hate to admit, i was there in 1966, while i was still in law school, there was no pathway just in the middle of this field, so i hitchhiked up there i had a euro password traveling in europe, but it wasn't good for england. i had hitchhiked. i hitchhiked out and i had my suitcase with me, i was going to stratford on avon to see shakespeare's production. and to go to the globe theater. i traipsed out there in the middle of this field at sign, and was somewhat dumbfounded there was more of a production to this whole scene. it was just in the middle of the

field, a small memorial. i trekked back, and has a was getting back to go back to the highway, i start sliding downhill. it was pouring down buckets of rain, sort of like when you came in. i slid down the sill, my suitcase came down behind me and on top of me. i was a muddy mess. the time i got to the highway, no one would stop and take up this muddy mess. eventually a lorry stopped and i was able to get back to stratford on avon. i have a vivid memory of this. i'm really delighted to be able to dissipate in this program tonight. the new york times headline yesterday read magna carta still posing a challenge at 800, in typical new york times fashion there's also an opinion piece entitled stop revering magna carta. by law professor at the university of chicago.

he decries some of the myths that have developed a dynamic part of. we will deal with some of those myths during the program tonight. the national archives is a very special place to have a discussion about magna carta because, as you just heard, the 1297 version is on display here. i was in this room when david rubenstein was honored by the national archives by bringing in the only copy we have and for present and for presented to the archives so to be on display. the archivist introduced me to him that night, it was one of my great thrills of life to me one of our real american heroes, who is really doing something with the billion dollars he made to improve the life of all of us in this country. and certainly preserving the magna carta is one of our

charges of freedom, and something great he is done for this country. i want to stop talking myself and get our illustrious panel. i will start as we do chronologically with asking us if they will give us a historical overview of the run-up to what happened in 1215 and then jenny will talk more about the actual ceiling of the magna carta itself. bruce: thank you. as i was listening to your anecdote, it struck me that your experience and king john's were not so dissimilar. you could take some pleasure in that. you had some empathy for that side. i am, as julie said, a professor , but i'm also the lead and chair of early english laws come a british state-funded project

to publish, reedit, and translate all british law of to magna carta, including magna carta. oftentimes people think here -- i don't blame them, that magna carta just brings from nowhere. suddenly there's a medieval document that appears and it's very important and there's not a lot of attention given to what came before. and also not a lot of attention given to what came after until he gets to the colonies. and then it takes on a vibrant kind of life. the texts we do in the project 150 of them, all legal texts that predate magna carta. it's a very vibrant legal culture going on in england up to magna carta. magna carta from that perspective is just part of it. it's not something out of the blue. it's not something that is surprising is a legal text. a text for people trying to hash out what they think the law

should be. instead of taking you through the weeds of those text, which are fun and free, going to talk about something that leads up to magna carta which is quite important. and that is the relationship of monarchs to the law. because magna carta itself is, i think, probably at its core a rejection of tyranny. it is a statement that kings do not have absolute power. that there are checks on royal authority and when world hader is bad, these should be invoked. as an old tradition not spelled out in magna carta, but an old tradition in english law. when you want to trace when monarchs started to feel compelled to put promises in writing to their subjects, that

they will administer the law correctly, they will administer the law fairly, they want their judges to administer the law fairly, you're looking at the 10th century edgar, king into the 10th century, was a powerful king and nevertheless someone who makes concessions. one of them is they begin this practice of promising in his law codes to honor them, to honor the very laws and not be abusive, not be a bad thing. that practices followed by subsequent kings. scandinavian kings, viking kings. an excellent creates probably a coronation oath, and knows that kings would take promising to respect the laws of the land. in his case, when he was made a promise as part of the deal by which he got england, was to honor the laws of edgar. it's a backward looking precedent, these are the old laws i wanted them.

you can follow that hopping and skipping all the way up to magna carta, even over the norman conquest 1066, the dynasty -- to: foreign is wrong. but william the conqueror fight the battle kills the king, harold, and takes over the kingdom. it's always a mistake to have a centralized government. they fall, and when they fall they fall very fast. for hundreds of years, scholars and tried to sort out what happened. one of the things i think is interesting in terms of magna carta is you have people taking a lot of pains to try and ensure that people feel comfortable that there has been a continuity of law and political power whether rightly or wrongly. they create a concept of the laws of edward the confessor. in each king after, from william on promises to honor those laws. those of the laws of the last

english king. they don't exist, there was no code issued by edward. with this notion that the golden age that produce laws that only wish kings that honor -- all english kings should honor is there. kings putting themselves under the law. hearing the law from the people and putting themselves under it. one aspect of magna carta is that. you have a king that john, who was put -- the document is from him that. the document is put under the law. and with a lot of safeguards in place in that first magna carta. the only other thing i will add and i will revisit this later when we talk about the common misunderstandings of magna carta , is that you should keep in mind, with all the legal texts it's still very hard to know whether any of them is official

as we would think of a law is official. something that people would go to as a source or reference. there's a lot of law floating around. you look at what happens to magna carta afterwards. people start to adjust, merge versions of it, it's really very strange. i think we tend to see it as a document that appears, it has these rights, and it comes out of nowhere. there is a long lead up to it and there's a different context for understanding it. that should always read there when we are trying to interpret what it actually meant to people at the time. judge lamberth: that's great. jenny, do you want to talk about how we did it? jenny: it's one thing for kings to promise to follow the law there's another thing to do it through the whole rain. -- reign.

we come to king john, one of only two kings in english history never to have a successor named after him. there's never been a john the second, and i can constantly predict there never will be. [laughter] jenny: that name is definitely off the list. when they name a new prints, what are the names? not john. there really are two proximate causes for magna carta. one is a foreign-policy disaster. the other is the character of the king. i would argue without those two factors, you would not have had magna carta. the foreign-policy disaster, bruce mentioned the norman conquest. with the norman conquest did was to make england a cross channel empire. they got england, they've got land on the continent they still control.

back to normandy where william the conqueror came from. over the course of the 12th century, they inspire the whole western seaboard of france. they own basically half of france, which is great for the english, not so good for the french. there is an expanding conflict between the french kingdom and the kings of england. it is exacerbated by the weird sort of futile situation between them, because the land in france that the english control, they are held of the french king. so the french king is actually the overlord of the english king. his capacity as duke of normandy, count of all june, etc.. this is really a false position for two kings to be in. in regards to each other

because the sovereignties conflict. but they haven't sorted that out in the 12th and 13th centuries. so it leads to a standing conflict of interest between them. there's fairly constant war between france and england in the french territories, that the list control. they're always going back and forth across the border. and so now we come to the reign of john. john takes the throne 1199, when richard the lion heart is killed in really a rather unimportant skirmish south of france in a territory that he controlled. you have john on the throne and the king of france has immediately going to try to take advantage of the relative instability of succession to see some land. they come to an agreement everything is going to be fine and then john gets married. and that screws everything up.

it is one of the most disastrous marriages in english history. for a number of reasons. but one reason is because of whom the drive is -- who the bride is, and where she comes from. this is isabel, from a small territory in southwestern france, and the problem is that it adjoins the county of lamarche. and lamarche was ruled my family that were constantly rebelling against king john. john did not want the count of lamarche to marry isabella. they were engaged. he wanted to block that marriage because he feared that if these two territories were united there would be this big indigestible block of rebel territory in the heart of his french dominion. he doesn't want his marriage to go forward.

so his solution is he marries the bride himself. he scopes then, takes the bride marries her himself, and oh by the way, they had been postponing this relationship, the count of lamarche and isabel, because the bride was 12 years old. the king marries her anyways. this might have been ok, if the king had compensated the count of lamarche for stealing his fiancée. but john was just the sort of guy not to do that. they would have been much better if he said i'm sorry, but here is some extra land, here's a payment, it's all good. he didn't do that. he basically thumbed his nose at his own vassal, and that caused the count of lamarche to appeal to the king of france. because, of course, the king of france is the overlord of both

the count of lamarche and the king of england. so he appeals of the king of france, and the king of france has just been waiting for an opportunity to do something against king john. and here, this is delivered to him on a silver platter. because, of course, john has violated the rights of his vassal in taking the fiancée without compensation. so the king of france confiscates the land. and he actually makes good on the confiscation by force of arms. he invades normandy and conquers it. now, the king of england has lost all the land in france, lots of it. and particularly, the land that people actually care about normandy. this is a complete disaster. kings of any kingdom are not supposed to lose land. if anything, you were supposed to increase it, not lose land. and now john is in a bind

because he has to try and get the land back. he needs to pay for the reconquest, he can't pay for it because now he is not giving any revenue from the land anymore. he has to tax england unmercifully in order to pay for the effort to get the land of france back. he is now a vicious circle. the more he taxes england, the more they hate him. but he has to get the land back or he will lose face is king. it goes on like this for about 10 years. in 1214, he basically makes one last effort to recover the land in france. he gathers together a coalition of continental allies, in particular, his nephew who was a german nobleman, and he is going to do a pincher movement. his allies are going to come into france from the northeast. john is going to land in the south, on the coast, and then

they're going to meet up, head towards paris, and get the king of france. but it doesn't work. because john is bottled up on the coast, he can never meet his allies. and now i has to go up against the king of france alone. and there is a battle between the king of france and this german ally, and the french win the battle. the battle -- all commentators will agree that there is pernicious straight-line from their two runnymede. the barons of england are waiting on the sidelines to see if john is successful. if he is maybe they will forgive him all the other stuff is done. if he's not, they are done with him. this battle takes place in july of 1214, in the fall of 1214 the barons are already gathering together to talk about what to do about king john.

and by the spring of that year, they are actively discussing some of the issues that end up in the draft of magna carta. so that's the foreign policy call for magna carta. but there is also a character called for magna carta, which is the fact that john was detested widely, by his barons. he was regarded as an trustworthy, vicious cruel. just the sort of person you would have to extract promises from, because he didn't keep his word. he was basically well-known for that. he was somebody who acted arbitrarily, one of the things he did to raise the money for this continual effort to recover land in france was to find people arbitrarily for offenses that sometimes were real and sometimes invented here it he would lend money to people and unrealistic amounts and then

have the debt hover over them. people were always scared of what john would do. he was very unpredictable. really, just the best example i think of the kind of cruelty the john engaged in -- he got into a dispute with one of his vassals and he actually had the wife and son of this vassal starved to death. when this was widely known. all the chroniclers of the time reported. it was widely known. that was the kind of thing he did. he also would go around to the castles of the barons and demand to sleep with their lives and daughters. -- their wives and daughters. this is the kind of person that you wanted a promise on parchment that he was going to be a good boy. judge lamberth: bruce, you mentioned before that this

became an iconic document in the united states, and i guess part of it -- you can talk about the reinterpretation by edward coke and the impact of the english bill of rights in this country. bruce: sure. it's actually an interesting tale. it's pretty straightforward. at one point, i ended up teaching the american revolution in graduate school yield, ed morgan was there they were desperate. the americans role of doing work so he said he would take anyone who could stand to read. i could do both. i had to bone up on american history, it had been a few years. when i realize in doing that was there was this interesting connection between magna carta through the petition of rice to the bill of rights to the colonial petitions, to the constitution. that's how i started my semester with magna carta. they were puzzled that that was their first reading. the reason, we see the link is textual, each of those sources

is citing an earlier source. but what happens to it in the 17th century is pretty remarkable. this is england coming out of the tudor p which is exactlye like the tv show. riod, oppressive violence, driven by personal motive. they were monarchs who believed in their own power. they thought that they were in fact quite the best thing around. and they weren't going to be troubled by the niceties of parliamentary precedent that had been built up over many decades. they were powerful kings, they did what they wanted. elizabeth was not that much different from her father, henry. england in the 1500s is a time when you have a lot of smoldering resentment amongst people who operate in the law people operate in the state, not just religious dissenters or catholics, but these folks. they begin to consider what they

could do. a lot of them gathered in london , they were associated with the society of antiquarians, it sounds very tame, a sleepy place to retire to but it was actually a hotbed of revolutionary zeal. the members there would read all documents, they would read old laws, coming back from the anglo-saxon period and all the way through magna carta and laws that have been passed since to try to figure out what their strategy should be. one of them, edward cooke, and that this chief justice. and he rules on a number of cases in such a way in 1606 to 1616, somewhere around then, in such a way as to reinterpret magna carta. magna carta is a very narrow, partisan documentary the people who draw it up benefit from it.

the same kind of argument was made about the american constitution by charles beard many years ago. partly true, partly not. the barons were very interested in themselves, and when i talked about people they were really thinking about the two people, they would think of three people , the withington of men, not women. that is kind of where they were. cook in changed circumstances, a change notion of what justice was, rethought it and said you know we're going to extend this is a precedent to all men. to all people. not just to in fact, this very narrow clique. in a number of rulings during that time, he did so. that led to come apart of that was the petition of rights which followed, which was asking the king of the time to in fact honor a number of the basic items in magna carta.

those later get expanded on in 1688, 89 during the glorious revolution to the bill of rights, the english bill of rights. you can't quarter troops, due process rules, it's all kind of their. the legal principles burnt out. and that's what the americans get. that's when they are settling coming over and colonizing. they have libraries, they have books, they have cook's commentaries. they read them the apprentice at law. they are keenly aware of that tradition. that is their heritage. it's in their charters. it's all one culture at that point. coke is huge for giving them a new way of thinking about magna carta. judge lamberth: that's exactly what i was looking for. rob, let's start with magna carta others influenced on the

colonial charters and go from there to the pre-revolution. robert: the language of the magna carta was reproduced in a number of the colonial charters. at least one colony, the colonials governor reviewed legislation to make sure it comported with magna carta. in sort of the discourse, as far as they know the time, people talked about claiming the same rights that english and had after the revolution, they wouldn't speak in those terms, but before the revolution, they did. all that was happening before we had a series of documents that we talk about as our common documents, the declaration of independence, or the constitution, including the bill of rights portion. in the declaration of independence, there's an obvious similarity because they are creating a series of complaints about the king. in this case, justifying why they are separating from the king. so tin the declaration of

independence, there's some statements that referred to that only the magna carta but the lineage of the magna carta, for example. when it says the king is created and foreign to our constitution. the writers are talking about how the principle of authority being subject to law that was not being followed. and of course, our constitution didn't mean a specific document it meant the principles and customs that english law followed. that is the declaration of independence. in the constitution itself there are several references but also connect to the magna carta. the first one is in article one listing out the powers of the national legislature where it says that the privilege of habeas corpus will be suspended except by congress and except in very limited circumstances. i should explain briefly that habeas corpus is a form of pleading in which you request to be brought before a court so you

can show that you are unjustly confined by the stage. that's why a lot of people talk about habeas corpus as sort of the most basic right against the government because allows you to matter what the circumstances of your confinement to come in and say this confinement is unlawful and i must be released. you go back to article 39 that the judgment in early that says that no one will be -- the king will not go against anyone except by law of the land. the law of the land meant that if the confinement was unjust, you want to be able to appeal. you want to be able to seek relief. this was true whether you were captured by governments, whether you have been tried and convicted and exhausted all of your appeals lso appeals are no longer possible. whether you were captured and a chargers anything, and jabbing you had a little bit, but that's the situation of the guantánamo bay detainees today.

and we talk about the legacy of magna carta in our time, i will say more about that. so habeas corpus is a pleading, it is the procedure that allows many state detainees to go free, both in england and earlier times and right through to today. in article one of the u.s. constitution, there is a provision that states the importance of habeas corpus, which connects to magna carta and says it can't be suspended except in very limited circumstances. then there are the provisions granting a speedy trial, a trial by jury, and due process. all of those are reproduced in the bill of rights. there are two due process clauses, the fifth of the 14th amendment. the fifth was adopted as part of the original bill of rights. the 14th amendment after the civil war. both refer to due process.

due process is another way of saying law of the land. you are talking about how the magna carta continues to influence law today, and i literally mean today. julie told me earlier the supreme court ruled this morning on a face -- on a case that cites the magna carta for this very principle that due process means law of the land. the due process clause has a direct textural -- textual connection to the manic part of. article 39 and 40 say there can't be imprisoned or punished except by lawful judgment of your peers or gnome will be delayed or denied justice. each of these refer to trial by jury, respectfully. and the right to a speedy trial as well. these are provisions in the bill of rights.

you see that in the constitution itself, we enacted language that operationalize as these guarantees that are set forth in the magna carta, and they become directly part of our law. since we do have a written constitution, like britain lawyers will cite to these provisions and even use these rights as a source of an action many times. judge lamberth: i take it that a number of state constitutions enacted at that time did the same, relied on language from the lego carter. bruce: it is certainly a lot of the colonial statutes and charters. it's in a lot of the charters and is something that through the 1600s as well is well-known throughout the colonies. i know because all that different initially than what someone in england might have

felt. but as the increasing alienation of the colonies that gives it more frayed. as they start going back to these, those of the things that are challenged by english monarchs, they say what is our charter? and it starts to take on a new life for them. judge lamberth: you are talking about the myth of the magna carta. let's talk about what the myth is. bruce: a couple of things. myth is not a bad word. i was reading the op-ed today partly out of vanity. i got to do an op-ed for the first time. no one asks medievalists to do op-ed's. this was it. [laughter] bruce: there's a lot of very similar kinds of things. people talking about the myth. as if it were a bad thing that i'm going to expose this document is something like a fairytale.

myth actually isn't that, it's a powerful story in some way. it something that takes on power outside of its mere words. you can see the bible has mythic qualities. fine. i use myth, i am meeting and in that sense. i think we tend to, as americans miss some things about magna carta that are in the footnotes so to speak. they're interesting things but i think make it come to life. instead of demythologizing it, keep in mind it is a human product. it is complex and what it produces is a reflection of that. magna carta is a statement of principles about due process the key one, chapter 39. but it also includes several chapters -- it might be 20 words that describe something.

they draw their text from an early 12th century forgery by jeffrey monmouth, which is about the kings of britain and arthur. this is what people are reading they are it in latin translation, is available in french at the time. and somehow, the words make it into the final document. a number of the key principles about the king being just our first found it not of the various drafts of documents, we directly track their process of writing magna carta. it's fantastic. you can do that with many documents. the earliest document where we see that stuff taking part in something called the laws of the english. it is a forgery that claims to be the laws of edward the confessor, which is not. someone has put an arthur, a

great legislator and conquer and said all these maxims about how things should be just and rule by wright and a king who does not rule by right is looking at all. it's a forgery. that's kind of interesting. the most radical parts of the magna carta get cut out. we get the stuff that through the test of time, which means politics, things that survive through politics like to process, we get those now. but at the time, magna carta had a clause for enforcement that was quite revolutionary. the barons would form a console and when the king misbehaves, they would appoint a posse to go after him and russell's cattle. -- rustle his cattle. they had all worked out. john agrees to that, it gets cut out immediately.

that's a remarkable thing. it's remarkable what survives, but that's even more remarkable. the last thing i alluded to earlier, we tend to think because we are very text oriented constitutional culture as robert was mentioning, the british and have a constitution. and it works out ok over there. they have done alright over the centuries. but we think it's very important to have everything in writing. and so we think of writing as hero the words, here is what the king and the barons agreed. these are what was said. but if you look at what happened to magna carta after it was issued so 1215, they agree to it, gets sealed. copies are ordered to be sent out. then they were immediately an old by the pope, who basically considers john a vassal. it gets reissued as a way to end the civil war, pub 17, and then 12 25 is the big one, then the

one in the 1930's. -- one in the 30's. one in the 50's. he gets reissued with different chapters. that's confusing enough because there is no point where someone says hold on, that's the old edition. you can cite that in court. -- you can't cite that in court. creative scribes began to combine them, taking the first they liked in dumping the parts they didn't. and when walking into a library at 1230 and setting i've heard about magna carta in rome, came all the way to see what a fantastic -- which version? we have 30 or 40 different versions. they didn't sort out which king had signed it for 500 years. they thought it was edward the third, not john. it is in cook's day, after cook in the 1700s that they sorted that out. kind of like our constitution. judge lamberth: you have some

skepticism about whether worked better in england are here. jenny: i don't know if this is the place for when we are about anglo-american friendship today. [laughter] judge lamberth: rob, would you like to talk about the myth? robert: as bruce was saying, there are a lot of different dimensions to the myth and ways of understanding what a myth is. and were jinks in 1904 -- edward jinks said this was not a document that spoke for the common people, and for the origin of terrorist rights. it was an agreement between one wealthy person and a group of other wealthy people. it's pretty clear that you can't disagree with that on those specific terms. but like the u.s. constitution

we have a constitutional culture that incorporates a number of myths, including the myth that we were born a free nation. there were some people who were very much unfree when the people -- when the nation was born. my take on the question of the myth is that it is undoubtedly correct that there are a number of mythic things about the constitution -- judge lamberth: like the myth that all men are created equal. robert: exactly right. at the same time we can utilize that myth, it can still shave our law. -- shape our law. we can move towards a position in law that is closer to what the myth was stating. judge lamberth: what you think is the continuing influence of magna carta today? and we talk about some specific things.

executive action. rob, do you want to talk about that? robert: yes. there are concrete questions today about executive action which forces us to ask what is the executive subject to law? you can take the example of drone strikes. this is a due process question in the fact that something is being taken away from people, their lives come up without a hearing or judicial ruling but as a result of internal deliberation in the executive ranch. the obama administration has explained that to them, due process does not always mean judicial process. in other words, due process is a flexible concept. any lawyer will tell you that. it is so flexible, it can

deprive someone of their life without going to a court. the process of due process can happen outside of the court without a judicial official being involved. this is something i think we need to talk very seriously about. what does due process mean if the executive can take life without a trial? that directly contradicts what article 39. judge lamberth: the barents. -- barons thought that was what they were doing with king john. robert: back in the early 20 century, carl schmitt came up with the idea that there is a space beyond law in which the executive had to operate at certain times. the executive is normally bound by the constitution in a constitutional republic but

sometimes that has to be suspended and moved into a space beyond rules or constraint for the executive. this is a fundamental problem of legal theory. not only are you going against the core principle of the magna carta, but there are no limits, essentially. some scholars have struggled with this idea. what would emergency constitutions look like? bruce ackerman said we could have an american constitution that kicks in at a certain point and it would suspend certain kinds of limits on executive power. for it to continue -- this is quite a mouthful, but there would have to be eight super majority area and -- sas supermajoritarian principle. it is not a thing in a shopping mow, but as longer as it goes

on, the longer the super majority has to approve it. if there is an emergent constitution, what triggers it, how long does it last, and what rules apply? when you admit there are no limits, how do you put limits back in? that is? one of the conundrums of executive authority in our time. judge lamberth: that is an excellent answer. i appreciate that. talk about jury trial and how the magna carta, in my own opinion, it has had a great influence in this country. jenny: it belongs in the category of myth. the word "jury" does not appear anywhere in magna carta. the idea that clause 39 in magna carta guarantees a right to trial by jury is a much later

interpretation of the magna carta. no one thought that in 1215. it is an interesting phenomenon. two phenomena can coincide in time and over time coalesce. the magna carta is agreed to in 1215 in that very year you have a huge event in the catholic church were pope innocent iii gathered a huge assembly of bishops and church leaders and hashed out a number of issues before the church at the time. one of the things they did was ban clerical participation in the judicial ordeal. this is where people are forced to walk across hot coals or be

thrown in the water. if the water excepts them, if you saying, they are innocent. if the water rejects them and they float, they are guilty. you have to fish them out in time if they are innocent before they drown. this is something people make fun of now. there is a wonderful scene in " monty python and the holy grail" about this. there are a lot of decisions across europe made on this basis and the church had grown uncomfortable and withdrew its approval. it almost immediately caused the ordeal to wither on the vine and they needed something else to put in place in order to decide guilt or innocence in a criminal case. on the continent, what they talked about was process. in england, they went a

different direction. by the way that involves torture. in england, they never had torture. what they came up with as a fix was a jury trial. juries had been around for other purposes. they were fact-finding bodies. they had been used by william the conqueror after the conquest to try to figure out what did he have? the doomsday inquest, where he found out all the land was and what it was worth. that was a system of local juries. juries get co-opted to take the place of the judicial ordeal. over time, people start to assume that the clause about judgment by your peers refers to trial by jury. that is not, in fact, how it was interpreted. there was no right to majority jury trials. there was no jury trial in 1215.

that is one of the central miss of the magna carta. by the 14th century people are making the connection and by the 17th century, people are flat-out saying that magna carta guarantees the right to trial by journey. judge lamberth: from the beginning of our country we did believe in trial by jury. jenny: absolutely. we thought this was a guaranteed right as of technique carter. it is not in there. 40 of the magna carta says no one will be denied or delayed justice. this is the idea that you have to get your judgment in a reasonably speedy fashion. it is an outgrowth of the sort of things that john would do which is to imprison people, sometimes for years, without judgment. he would do this to extort more

and more money out of the person concerned. one of the interesting things you can do in reading the magna carta is to see what king john was actually doing versus what he was told not to do. judge lamberth: talk a little more about habeas corpus. in this country, it is turned -- it has turned out to be extremely important. in other countries, it is a key to decide he thinks and the judiciary. robert: yes. we can go through u.s. history and find conflicts where habeas corpus favored prominently during the years preceding the civil war. habeas corpus was used to return slaves to captors and sometimes

for slaves to be freed and sometimes for slave catchers to be freed. in pennsylvania the slave catcher was prosecuted under a law prohibiting kidnapping and then he sought release through habeas corpus, saying that the properties of my confinement are unjust because pennsylvania did not have the authority to pass this law. habeas corpus is a very powerful tool. like any other tool, it can be used for different ends. when we jump ahead to the warren court in the 1950's, it broadens access to habeas corpus is a general part of the political process, striking down racial segregation. in one particular case, justice brennan refers to magna carta

and how it has been functioning differently in our system. in the british system, habeas corpus would be a key component of protecting liberty that came from magna carta. some historians say that is wrong. the point is that when habeas corpus is being interpreted there is this connection to the magna carta being made. in the rehnquist years the court restricted access to habeas corpus in some ways. there is the well-known case of herrera versus collins were the -- where the defendant could -- plaintiff could prove he was innocent. he was denied the opportunity. the scent was very angry. justice scalia said that -- the

dissent was very angry. justice scalia said your behavior does not entitle you to habeas corpus. scalia said if the trial was there and you are not come waning about the trial, you are not entitled to a habeas corpus hearing because of evidence later on. that is a controversial statement but it shows how habeas corpus has been contested , how there has been a pen dealer -- pendular movement. scholars have noticed the way habeas corpus was manipulated by angus king's and the way the bush administration manipulated it by moving a prisoner out of the realm, so to speak, the writ of habeas corpus was inapplicable to them. habeas corpus did not go into effect when they reached guantanamo bay. habeas corpus is not available

when you are in the realm. that brings us up to the 2008 case, which got me interested in looking at these magna carta and u.s. constitution comparison. guantanamo bay was asking for a hideous rights -- habeas corpus rights doctrine and was denied. the habeas corpus mechanism was powerful by which people protest their unlawful confinement by the government. there is a practical, legal effect to the continued citation of the magna carta because it is a way of putting a check on the executive. that happened in 2008. one of the other things if you read the oral arguments is other detainee cases that were decided

a couple of years earlier. the question about habeas corpus and how it is used. there's a later date when the government shows why they detain the prisoner. what happens when the government says we have pertained a prisoner pursuant to our authority? we've retain the prisoner because the prisoner is a threat to the country. is that enough, or is there something more that has to be done? can that prisoner respond? as important as habeas corpus is to protect and secure things from liberty, it is also second how it functions and that was contested by some of the administration lawyers about how

habeas corpus hearing should proceed. there were a large number of hearings. just getting the right to a showing you will be free does not mean you should be free. in the year 2008, they were made and not repealed. again, it does show we are still talking about trying to come to terms with this tool of protecting individual rights. judge lamberth: that is a good settlement to the final question of the panel. we do want to take questions now. thank you for a terrific

discussion. please join me in a round of applause. -- we join me and think all the panelists. [applause] if you would come down to one of the microphones or someone will hand you a microphone. i would appreciate it so we could make sure that her audience -- our audience can hear the question. >> was the position of the church of the england affected in any way by magna carta? jenny: yes. magna carta guarantees liberty. -- liberty of the church. it actually grew out of a huge controversy earlier in john's rain. john had refused to except a

candidate for -- accept a candidate for the arts pick up -- archbishop of canterbury. the pope put forward his own bishop and john would not allow the archbishop into the kingdom. this is probably a bad move because the archbishop of canterbury was ultimately accepted after an interdict. seven years after the church when on strike in england, no masses could be said, and john had to cave and surrendered the kingdom to the hands of the pope as a fief. stephen langton was right there at running need. it insisted on the liberty of the church and what it meant. hands off of the elections to bishops.

it was a very self interested clause from the archbishop of canterbury's rule of canterbury postural but that clause is still in force today. there are only 3.5 causes of magna carta that are still on the books in england. all others have been repealed. the liberty of the church is still part of english law to this day. judge lamberth: i'm part of our bill as -- and part of our bill of rights as well. bruce: the conservation of church and state is something that had had a lot of practice. we have from around the year 600 protection of the clergy and trying to sort out what the relationship is with the state. there were archbishops who went into exile, most famously beckett who was murdered by enthusiastic people.

that is so we the bulk menu strips of law -- that is when we have bulk manuscripts of law produced. they are trying to figure out what the liberty of the church is, how much freedom they should have, and how you get a king that is otherwise out hunting to actually honor these promises. >> the title of this panel is magna carta and the constitution, but most countries have constitutions. can you talk a little bit about the effects of magna carta of the constitutions of other countries? judge lamberth: i couldn't. [laughter] maybe the panelists scan. jenny: one thing that is quite interesting is the impact of magna carta fee of the english bill of rights on the european constitution. there is a tremendous irony at the heart of it because a lot of

these english rights inspired the creators of the european union. what is happening in britain right now? they are actively talking about withdrawing from the european union. one of things they're they are concerned about right now is the human rights act, which is a provision that regulates appeals to the human rights court. they are trying to repeal it and implement a new provision on staying in britain so they have no connection to what is going in on the continent. you have the british who inspired the european who tried to get out of the european construct altogether. magna carta has had some interesting effects around the world. judge lamberth: the question

does raise one other thing in my mind. that is the controversy in our own supreme court about whether they should ever sign for an law. apparently magna carta is not considered foreign law. [laughter] jenny: there you go. >> to comment quickly on the irony, you mentioned it to the speaker this afternoon that you have to potentially be strip-searched to come to view these documents that are actually supposed to be our freedom is rather ironic to me. regarding the buildup -- judge lamberth: terrific comment. >> i was actually talking with a speaker this afternoon about the working hypothesis you come to, having had everything i've owned taken from me over the last four years by police or state or

county, enforcing laws that didn't exist or are not based on data. the question or comment i have is the lands taken in coastal france and then you were commenting about the money that was coming to land and thinking about land. is that a fishery issue? fisheries that were productive in the land of france, was that the money that was supplying john with the resources to do what they were doing? jenny: primarily. these were tax revenues that were coming into treasuries in these different french domains. there was a treasury in normandy. that money was now going to the

treasury in paris instead of to england. >> i guess my question is taxes were being levied on what production of goods? was a coming from land and coastal fisheries? jenny: mostly land and other types of trades. >> i come to this because i was the fitting myself to the north carolina coast -- court because i was building an oyster hatchery for free with my kayak. it was starting in 980 because the author was making the point that the onshore fisheries in south africa had been depleted to new information.

is -- he is tracking the developments of the fishery starting in the eastern atlantic, moving to the north atlantic, and progressing into the west atlantic. judge lamberth: there is a question there somewhere right? >> yeah, sorry. just noting that when the fisheries were depleted to the point where the west and the atlantic were being affected, interesting thing in the colonies were there were laws that were basically regulating the fisheries. the irony is the laws were passed by the biggest profiteers of the fisheries and therefore the fisheries continue to decline. by the 1800s the king of england commissioned a study to figure out what they could do. they look at their research, came back to the king, and said there is nothing we can do. the people fishing have to regulate themselves.

he noticed the king of england at the time put his stamp of approval on it. i'm defending myself to north carolina superior court for charges against me as i was building in oyster reef with my kayak. the charges were dropped because the state did not have reason to charge me. more and more what you are seeing is that if you are like that magna carta, the laws are typically a result of people being sedentary because of their wealth and therefore there is actually cognitive consequences due to being sitting. it creates a lot of fear. that is comes into play, especially with 9/11 and these drone strikes, more and more. especially with our country. judge lamberth: ok, we've got the point. many go to the question appear.

>> -- let me go to the question up here. >> my question is the signers of the magna carta and the numbers and whether they change. are there more baron families added? as they die off, two sons -- do sons die off -- do sons sign off? i have not found a genealogy link, but i am tracing a family in particular and i have a question around the signers. bruce: the farther back you go, the better your chances of being connected to people who matter. it is pretty easy for most americans to somehow hook up into the lower nobility by the 1400s and potentially be descendents of one of these barons. there was an organization of barons and dames of magna carta,

i think is what it is called. it is an international organization. you may want to consult with them because they see it as their task to keep tabs and verify who is connected. each time magna carta gets reconfirmed you have new signatures. in 1225 when it comes out, that is the official version. that is the one that is trimmed down, the king is ok with it, and he gets trotted out every time. only three of the barons who signed in 1215 are alive to sign and a few others. that is all there is. maybe there should be separate organizations for each one. [laughter] they could have a big jamboree every summer. >> i was at the jefferson memorial the other day reading

one of those have blows -- t hose tableaus, a quote from jefferson and i will be brief. he said that laws that do not change would he the same as a man putting on a coat that he wore as a boy. being also a liberal arts student i knowing that wikipedia is the authority of all things i wanted to ask about the noticed of the strict obstructionist which used to be called a regionalist according to wikipedia, how could you not see the magna carta as a negotiating document as a basis

you could tell -- as a basis? you could tell from what was in there what king john was doing. that is why i am confused as to why you can have such a wide gulf between negotiations between -- negotiations and these words which are ironbound and i can tell 200 years ago what is in your head. i do enjoy your comments. bruce: can i leave in? i'm not a lawyer but this cap's the great divide of how we seething. we look at lives from the past and say these are artifacts. they work in their culture for different ways. you see a whole series of documents for the magna carta. there were misinterpretations, all sorts of strange things going on that were perfectly fine in history. the moment you say this needs to

be the foundation for things in the present, that is when you run into problems. that is essentially what it does. if you talk to an audience of historians, they would not and say absolutely, we are on your team. lawyers, even if they are not strict obstructionists, they would say you have a problem because how can law provide the stability and predictability which is part of due process, which is one of the great things we have in our system? they do not see a historical way out of that historians do not know how to invite lawyers either. i go to conferences. they are evenly divided, lawyers and historians. we all talk to each other and no one really understands each other. [laughter] in the op-ed i wrote for today

it was taking a shot at that. it is a standard historical shot that cook reinterprets it. that is a good thing. none of us should be unhappy with that. that is simply how language operates. i do think that what the labels you are talking about our inventions of the present, you know? it is just a way of sorting out something that is inherently messy and does not work. that is the great message of magna carta 8800. what are you going to show me for the next 800 -- that is a great message from the magna carta at 800. what are you going to show me for the next 800? i am looking at it for several thousands years / judge lamberth: if you were a strict construction is, you could not except some of the things that cook had.

yet we have the last 200 years in our country. jenny: there is an image of edward cooke on the braun stores into the supreme court chamber. bruce: have it removed. -- on the bronze doors into the supreme court chamber. bruce: have it removed. [laughter] jenny: this is why i went into it earlier and was skeptical of the british constitution. there are two ways you can change with the times, legally speaking. you can change the law or the interpretation of the law. there are two different ways you can go with that. there are advantages and disadvantages to our constitution versus the british constitution. it is basically what they say it is at any particular time. their system is far more flexible. it is very malleable. they can change big things about

their system of government with a majority vote in the house of commons. in 1999 they got rid of all but 92 hereditary sears in the house of lords. they just needed a majority to do that. your house has been in the house of lords for 700 years? too bad. they created a supreme court. they had not had one. they created an entire branch of government like that. we have only amended the constitution 27 times and 10 of those were done in two years. it is a different way of proceeding. what we have to do if we want to change with the times is see things in our constitution that nobody knew where there at the time. that is really where the argument over the constitution ends up.

jenny: the scene -- >> missing you have described with continental and colonial culture, are there other examples of this throughout the world of a people or government submitting to such limitations or is this a unique english culture thing? jenny: it was not unique at the time. the third century was a period when a lot of charters were being issued. you can see them in whole and -- in poland. this was a trend around europe at the time. all of the others went by the boards. the english wanted the only one that was still salient.

it is a lone survivor of a trend -- judge lamberth: i will add to that. from my point of view, as a judge appointed to life who could do whatever i think is right, i see for the judges that come to visit in washington and i try to describe our system of government to them -- system of justice to them. they have great constitutions and they have things on paper that sound terrific. if push comes to shove and they can be replaced by the ruler of the country easily, it has to affect how they rule in cases. we have never impeached a judge in history for how they ruled on a case. we have been fortunate. there was an attempt on the supreme court once. it failed. they got into some other trouble.

judges are free to do what they think is right. it is an independence of our judiciary that does not exist in many countries. whether they have something like the magna carta is really less important than the way their judiciary functions and whether it has independence. from my point of view, one of the most important things of our system and justice and separation of powers started with the magna carta and empowering judgments to determine when the king is violating the law. our system of justice ensures that we have that independence, which i think is one of the genius moments. bruce: the place where i start to look for the explanation because i am thinking about the place you are talking and it is a marked, different system. continental europe in the middle ages as of following the justinian code. it is an autocratic system.

it is a system that operates very top-down. the english system, and we can talk about their constitution being flexible now. what was it back in the middle ages? kinks negotiated with barons. there were frequent rebellions and civil wars. not as bad as the spanish, but -- and there were moments of autocracy. magna carta is founded on judicial precedents, really. there must be something in that that explains why this particular charter of liberties lasts and not just that england had better librarians that kept copies. >> that is along the lines of the question i was going to ask. given the fact that through this. -- -- this period of english history, i have read that rulers

were fostering the origins of the ever cities to use the church's law to justify their own rules. what was it about the barons, and we call him that king john, what do you think caused them to turn the law instead of the usual action, which was to sac castles and burn whatever? bruce: the difference is the english developed -- and you don't see this anywhere in continental europe -- a miniature complaint that is founded on law. the way you complain about a monarch is with legal texts. that tends to be the focus. you also produce legal texts as

a part of that. i stuck -- i study what is called anglo-roman legal apocrypha. if that doesn't put you to sleep, nothing will. [laughter] they are forgeries and frauds and they are loved by the english. especially after beckett. bishops are making copies of these and using them to argue their cases. not in the sense that they are citing it, but they are giving fuel to the fact -- when the king points to the past and says that is how i am, we have evidence against them. that is how the complaint to monarchs. the text mentions the law of the english was produced in 1206. some people about the magna carta debate have chosen the vehicle of the futurist -- the

huge list of english law that they incorporate things they want to deal with. you end up with civil wars and the magna carta. jenny: let me add to that once king john repudiates magna carta, the barons do change an alternate claimant to the throne. they offer the throne to prince louis of france, with the son of the king of france who had the conflict with king john in the first place. they invited king louis along -- prince louis was invited on english shores with french troops. that happened repeatedly in the last time that happened was during the glorious revolution. when james the second, the last

of the stewart kings, was deposed, part of it is because he interfered with the independence of the judiciary. that is the straw that breaks the camel's back. he tries to fire a justice that rules against the king. >> hello judge. i was recently in a conversation with a lawyer. the supreme court had a case called garcetti which limited employee speech under the first amendment and this lawyer argued a case in the connecticut supreme court. the connecticut judges said we are going to have a higher standard than the federal. i thought that was pretty shocking. i was wondering if the magna carta made some distinction between state constitution and laws and federal. jenny: in its or -- robert: in its origins, no.

it is just about the realm. how it gets used, i don't know. is there anything about state interpretations versus federal interpretations? bruce: not that i am aware of. one of the metaphors of use is the state can set a higher ceiling. the state can give rights beyond what is the federal government requiring. we cannot set the level of price lower. this is responding to how it happens in u.s. law. i think it happens because you have this strong tradition of states rights and that states are sensitive about what they are left alone to do. judge lamberth: on behalf of all of us in the audience, i want to thank rob and jimmy and bruce -- jenny and bruce for a very enlightening discussion.

[applause] i also want to think all of you hearty souls for showing up on a night like this. i commend you for being here. i did not think there would be that much interest in the magna carta. i'm glad to see you are all here. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> this weekend on the c-span networks, politics books, in american history. the night 8:00 eastern on c-span, a discussion on illegal immigrants and the enforcement of arizona's immigration law. sunday at 6:30, chris christie on national security. he speaks at the university of new hampshire at manchester. on c-span2 tonight at 10:00 eastern, michael tanner talks about the growing national debt and looks at a structuring retirement program.